The judgment, effectively declaring section 11 of the Powers and Privileges and Immunities of Parliament and Provincial Legislatures Act (the Act) inconsistent with the Constitution, is a much welcomed reminder to politicians of what the separation of powers and freedom of speech, in context of our Constitution, is all about. The judgment also reiterated the importance of freedom of speech in Parliament as a fundamental value in terms of which members of Parliament must fulfil their constitutional duties.
The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. Accordingly, the Assembly must provide a national forum for public debate and must ensure that every public official – from the President to the post office clerk – effectively accounts to Parliament and faces parliamentary sanction when failing to do so. For this reason, the Constitution, in terms of sections 58(1)(b) and 71(1)(b), protects members of Parliament in relation to these obligations. It does so by guaranteeing freedom of speech in the Assembly, NCOP and their respective committees, and by determining that members are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything they have said in, produced before or submitted to the Assembly, the NCOP or any of their committees.
However, during a joint sitting of the Assembly and NCOP for the President’s annual State of the Nation Address, the Speaker of the Assembly and Chairperson of the NCOP relied on section 11 of the Act to have members of the Economic Freedom Fighters (EFF) removed from the House. In this regard, the presiding officers called on members of the South African Police Service (SAPS) and parliamentary security service to forcefully remove EFF members from the House after the latter posed a number of questions to the President and failed to adhere to instructions by the Speaker and Chairperson. The Democratic Alliance (DA) subsequently brought an application in the High Court questioning the constitutionality of section 11.
Consequently, Judge Andre Le Grange stated that “in as much as Parliament is entitled to conduct its own affairs, the privilege of freedom of speech is vital to allow Parliament to perform its function of permitting unrestrained debate about matters of public importance”. He subsequently held that section 11 of the Act was inconsistent with the Constitution and invalid as it “permits a member to be arrested for conduct that is protected by sections 58(1)(b) and 71(1)(b) of the Constitution”, but he suspended the order for 12 months to allow Parliament to remedy this shortcoming. In line with section 167(5) of the Constitution, the order of constitutional invalidity was also referred to the Constitutional Court for confirmation. In this instance, the Constitutional Court will, in all probability, agree with the High Court.
Apart from the obvious constitutional limitations in the Act, the real problem remains: the governing alliance and, by implication, the Speaker and Chairperson, predominantly determine the degree and vigour with which Parliament engages in debate and carries out its oversight duty. Consequently, when a majoritarian mentality stifles proper debate and limits effective oversight to lip service, opposition parties have a right to be frustrated. In such instances, they are unfortunately left with little option but to defy oftentimes blatantly subjective and incorrect rulings by the Speaker and Chairperson. The right to speak freely and the conviction to act with integrity – rather than on instruction – are the makings of a government that is accountable, responsive and open. Hence, for the Speaker and Chairperson to have relied on the Act to silence and remove an opposition party from the House was neither acceptable nor justifiable in an open and democratic society. In fact, it contradicted the values and fundamental freedoms our constitutional democracy was founded upon. Perhaps the Speaker and Chairperson should be reminded that, according to the Constitutional Court, our multi-party system of democratic governance was designed “to ensure that the voiceless are heard, and that even those of us who would, given a choice, have preferred not to entertain the views of the marginalised or the powerless minorities, listen”.
By Adv Johan Kruger, Director: Centre for Constitutional Rights